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39 minutes ago, formerfed said:

Sure it can at least in the context discussed here.  An ordering agency has a task order requirement.  The agency decides the work involved.  A contractor responds with a proposal that includes one or more labor categories and associated rates.  It’s not the labor title that decides whether the work is exempt or not.

See my response to Vel, I do not think you have considered the full solicitation contract award process that GSA uses.  By example are you saying, in consideration of the detail I provided to Vel, that the positions on this contractors current pricing can sometimes be SCA exempt and sometimes not?  As you consider please consider how these categories cross reference to the most current USDOL SCA Directory of Occupations

 Contractors description of the category (picked one category out of tens of them)- 

Minimum/General Experience: Zero to two years related experience providing assistant to attorneys and preparing legal documents or paralegal certification.

Functional Responsibility: Provides assistance to attorneys in preparing legal documents. Performs legal research and compiles data from a variety of reference sources such as digests, encyclopedias, and practice manuals. Performs document preparation (especially during discovery and production support) including reviewing, organizing, numbering, and indexing). Document conversion involving capturing documents on some sort of media: magnetic, CD, microfilm, and converting documents to image (such as tiff or pdf) or to text Performs computer-assisted research on systems such as Lexis and Westlaw. Formal training in legal research and methods.

Minimum Education: Bachelor’s degree or equivalent combination of training / experience.

 

 

SKILL CATEGORY/SKILL DESCRIPTION

GOVT. HOURLY NET
PRICE

Litigation Support Services 541611LIT

 

 

Legal Assistant I

$     37.70

L

 
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23 minutes ago, C Culham said:

So in consideration of the below quote the question loops back to you, considering what GSA asks for with regard to compliance to SCA in the solicitation/contract   in establishing pricing for a specific labor category (CLIN) on a specific GSA FSS contractors contract, can the contractor have it both ways, sometimes have that contract labor category SCA and sometimes not?  

"Applicable to this solicitation (Service Contract Labor Standards 52.222-41, and related clauses 52.222-17, 52.222-42, 52.222-43, 52.222-49, and 52.222-55) (A) The Service Contract Labor Standards (SCLS), formerly known as the Service Contract Act (SCA) applies to some nonprofessional services to be provided under this Schedule excluding pricing offered for services outside of the United States...

The entire quote provided by Carl, of which the above is a brief excerpt, is evidence that our government has lost its bureaucratic mind.

Carl, can you provide a link to that solicitation?

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Just now, Vern Edwards said:

Carl, can you provide a link to that solicitation?

On 1/3/2022 at 6:52 AM, C Culham said:

To understand this further consider the following wording from the current solicitation on the street for various categories/SINS for GSA FSS.  Go here https://sam.gov/opp/ec77a8ef4af24c229fc199cb96af7f55/view 

I know poor me, and probably my own dang fault for not being very good at written communication but I think my position on all kinds of issues in Forum would be better understood (whether I am right or wrong) if folks would read my posts😪🤣

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I know poor me, and probably my own dang fault for not being very good at written communication but I think my position on all kinds of issues in Forum would be better understood (whether I am right or wrong) if folks would read my posts😪🤣

Carl, That post was more than 24 hours ago, and you have posted volumes since then. Do you expect me to read and memorize? 😝

Thanks for the link.

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 By example are you saying, in consideration of the detail I provided to Vel, that the positions on this contractors current pricing can sometimes be SCA exempt and sometimes not 

@C Culham I’m not saying prices can sometimes be exempt or not.  Pricing does include SCA coverage.  What I am saying is that a given labor category pricing can be for work that is both SCA covered and not covered.  It’s the nature of the work that counts.  A task order defines a job that needs done.  A contractor proposes pricing by labor category.  Just because the rates for those categories are based on SCA coverage doesn’t mean the task order work is.

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24 minutes ago, formerfed said:

A task order defines a job that needs done.

Yes and the labor category that is going to do it is proposed and that labor category from the contractors schedule contract is either SCA or not.   If the task order requires a category not on contract the I see it becoming a open market need.   Two references make me think this way -

1. This from the reference you posted on Sat, Jan 1 at 1:08 -  "Task orders may not be issued to Schedule contractors unless the labor categories/fixed price services applicable to the order are awarded under the contractor’s Schedule contract or procured IAW GSAR Clause 552.238-115, Special Ordering Procedures for the Acquisition of Order-Level Materials."

2. And this statement found on all wage determinations with a reminder that wage determinations are in the orders  - 

"Conformance Process:
The contracting officer shall require that any class of service employee which is 
not listed herein and which is to be employed under the contract (i.e. the work to 
be performed is not performed by any classification listed in the wage 
determination) be classified by the contractor so as to provide a reasonable 
relationship (i.e. appropriate level of skill comparison) between such unlisted 
classifications and the classifications listed in the wage determination (See 29 CFR 
4.6(b)(2)(i)).  Such conforming procedures shall be initiated by the contractor 
prior to the performance of contract work by such unlisted class(es) of employees 
(See 29 CFR 4.6(b)(2)(ii)).  The Wage and Hour Division shall make a final 
determination of conformed classification wage rate and/or fringe benefits which 
shall be paid to all employees performing in the classification from the first day 
of work on which contract work is performed by them in the classification.  Failure 
to pay such unlisted employees the compensation agreed upon by the interested 
parties and/or fully determined by the Wage and Hour Division retroactive to the 
date such class of employees commenced contract work shall be a violation of the Act 
and this contract.  (See 29 CFR 4.6(b)(2)(v)). When multiple wage determinations are 
included in a contract a separate SF-1444 should be prepared for each wage 
determination to which a class(es) is to be conformed."

 

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In typical Wifcon Forum fashion, we have wandered off track. Here is the original question:

On 12/29/2021 at 8:07 AM, CuriousContractor_22 said:

Hi there,

I have seen agencies issue task orders under GSA schedules and state the task order it is not SCA applicable because they believe all employees will be bona fide executive, administrative or professional employees. Here's the issue: many vendors have labor categories that are SCA applicable in their GSA schedules - e.g., word processors, support staff,  clerks, etc.

Since the agency says SCA is not applicable on the task order due to the "bona fide executive, administrative, or professional employees" assumptions, is the contractor supposed to ignore their SCA wage determinations? Or is the contract office at the agency wrong and cannot overrule the SCA? I have not found a clear answer on this.

Suppose that a contractor has a GSA FSS contract that contains FAR 52.222-41 and 52.216-18. It receives two task orders. The first is for work the primary purpose of which is to obtain services from "service employees." The second is for professional services, with nonprofessional employees working in support.

The contractor pays the nonprofessional employees SCLRs under the first order. But following the instructions given to CuriousContractor_22 by the agency, that the second order is not subject to the SCA, the contractor pays lower rates under that order. The contract says nothing about that procedure.

Nonprofessional employees working on both tasks and doing the same work under the same job titles notice that they are not getting the SCLRs for their work under the second order and complain to the contractor, their employer. The contractor tells them the SCLRs don't apply to the second order. The employees complain to the DOL.

Do the CO's instructions that the SCA and the SCLRs do not apply to the second order constitute an adequate defense against violation of the Service Contract Act and breach of 52.222-41?

In light of 52.222-41 and 52.216-18, did the CO who issued the two orders have the authority to say that the SCLRs did not apply to the second order?

Does the SCA apply to the contract as a whole or on an order-by-order basis?

Has the contractor violated the terms of 52.222-41?

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6 hours ago, Vern Edwards said:

In typical Wifcon Forum fashion, we have wandered off track. Here is the original question:

Suppose that a contractor has a GSA FSS contract that contains FAR 52.222-41 and 52.216-18. It receives two task orders. The first is for work the primary purpose of which is to obtain services from "service employees." The second is for professional services, with nonprofessional employees working in support.

The contractor pays the nonprofessional employees SCLRs under the first order. But following the instructions given to CuriousContractor_22 by the agency, that the second order is not subject to the SCA, the contractor pays lower rates under that order. The contract says nothing about that procedure.

Nonprofessional employees working on both tasks and doing the same work under the same job titles…

@Vern EdwardsExcept CuriousContractor_22 said “they believe all employees will be bona fide executive, administrative or professional employees.”  Your scenario has the contractor paying nonprofessional in both situations.  I think a fairer comparison is doing nonprofessional work in the first and professional work in the second task but using the same job title.

 

 

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Then I think if the support nonprofessional personnel are other than incidental, then the SCA applies.

The problem I have is interpreting that all services of a category are considered SCA covered because DOL has a labor classification for that job.  I believe we need to look at the specifics of a task and decide.

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2 hours ago, formerfed said:

hen I think if the support nonprofessional personnel are other than incidental, then the SCA applies.

What does incidental have to do with it? I thought the standard, as stated in FAR 22.1003-1, was "principal purpose"? Where did you find your incidental/nonincidental standard? Is that in 29 CFR part 4? (See 29 CFR 4.111 and 4.130.) It's not in FAR subpart 22.10?

In any professional task, nonprofessional support personnel may outnumber the professional personnel. That does not make their work the principal purpose of the task.

But assume that the task entails work by ten Ph.D. physicists and three nonprofessional technicians.

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1 hour ago, Vern Edwards said:

What does incidental have to do with it? I thought the standard, as stated in FAR 22.1003-1, was "principal purpose"? Where did you find your incidental/nonincidental standard? Is that in 29 CFR part 4? (See 29 CFR 4.111 and 4.130.) It's not in FAR subpart 22.10?

I’m thinking in terms of GSA Schedule orders.  You likely would have multiple CLINS because you wouldn’t categorize everyone at the same pay rate.  Support or incidental staff will have a different rate.  Those might be at SCA covered jobs.  But if we are looking at the overall task as one effort, then incidental goes away. 

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@formerfedGSA schedule CLIN prices have nothing to do with it! Those are the prices the government pays the contractor for the services. We're talking about the wages and fringes the contractor must pay to its employees.

Do the SCA and the SCLRs apply to the contract as a whole or on an order-by-order basis?

Has the contractor violated the terms of 52.222-41?

 

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20 hours ago, Vern Edwards said:

Is the following plausible?

Vern:  I’ll take the bait, realizing this is a David vs. Goliath matchup.

I agree that when 52.222-41 is incorporated at the IDIQ level, it applies to all task orders. But I’m not sure I agree that the test of the principle purpose is not performed at the task order level. The definition of Contract in Part 2 does include “job order or task letters issued under basic ordering agreements.”

An IDIQ does not order any services that are subject to the act, but the task orders do.  52.222-41(b) reads in part “This clause does not apply to contracts or subcontracts administratively exempted by the Secretary of Labor or exempted by 41 U.S.C. 6702, as interpreted in Subpart C of 29 CFR Part 4.”  To say that all orders are subject to 52.222-41 and employees must be compensated by the relevant wage determination would seem to render the sentence, quoted above, as irrelevant.  By that logic, it would seem that even an order under $2,500 would then be subject to the wage determinations.

 Yes, I do agree your solution is plausible.

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20 hours ago, C Culham said:

the question loops back to you

Admittedly, I’ve never worked for GSA and even my experience at placing orders under schedules is not very vast. But my take on the requirements that you posted (assuming I were a contractor) would be to develop the most competitive SCLS rates, taking into consideration the multiple WDs as well as the potential to run across CBAs with high rates. If the situation arose where the work was not covered by the Act, then offering or negotiating lower rates may then be possible.

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17 hours ago, Vern Edwards said:

Suppose that a contractor has a GSA FSS contract that contains FAR 52.222-41 and 52.216-18. It receives two task orders. The first is for work the primary purpose of which is to obtain services from "service employees." The second is for professional services, with nonprofessional employees working in support.

'I fear this takes us off topic again yet uncovers some very good info regarding GSA FSS that at least for me has been a learning process.  Why? 

Within GSA FSS there are two options to procure professional services - the "Professional Services" MAS (PS) and OASIS.   

Under the PS the rates are not subject to SCLS.   To confirm this go back to the RFP that I have provided as reference and look at the "Professional Services Category Attachment".  No reference to SCA (aka SCLS).  I believe the reason is only professional service categories are priced on this schedule to which GSA has determine SCA does not apply.  I would suggest that if an agency needed both professional and non-professional services the Professional Services MAS would not be appropriate to use. 

So lets move to OASIS where a mix would be appropriate.  I implore all to go to the reference link that immediately follows and read, most specifically pages 14 and 15.  https://www.gsa.gov/cdnstatic/Final Conformed OASIS Solicitation.pdf 

And as usual for me you might find the document "Comparison [PDF - 145 KB]" that is found at the bottom of this webpage https://www.gsa.gov/buying-selling/products-services/professional-services/buy-services/oasis-and-oasis-small-business of interest where PS and OASIS are compared 

Once you have read I think you, like me will learn more, which for me has me doing a complete 360 and would suggest to the OP that Yes in certain instances depending on the GSA FSS schedule the agency can tell a contractor that the needed services are those that might be exempt from SCA (SCLS).

I will follow the thread further but I really do believe it is case closed, lesson learned, with apologies to all for not doing my homework first before writing even one comment!  Now I will see if lesson learned for me sticks for future Forum discussions!

Happy New Year!

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10 hours ago, Vern Edwards said:

@formerfedGSA schedule CLIN prices have nothing to do with it! Those are the prices the government pays the contractor for the services. We're talking about the wages and fringes the contractor must pay to its employees.

Do the SCA and the SCLRs apply to the contract as a whole or on an order-by-order basis?

Has the contractor violated the terms of 52.222-41?

 

I can see task order CLINS or line items breaking down work separately.  That was my thinking about distinguishing between SCA and non-SCA.  But never mind,

I see the SCA applying at the task order level. The contract just has a huge listing of labor categories and a very broad Section C.  It can’t possibly be so detailed to distinguish whether any or all work is SCA covered or not.  That’s decided at the order level.

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1 hour ago, formerfed said:

I can see task order CLINS or line items breaking down work separately.  That was my thinking about distinguishing between SCA and non-SCA.  But never mind,

I see the SCA applying at the task order level. The contract just has a huge listing of labor categories and a very broad Section C.  It can’t possibly be so detailed to distinguish whether any or all work is SCA covered or not.  That’s decided at the order level.

@formerfedThanks!

I don't know the right answer, if there is one.

My point in all this has been to show that the acquisition regulatory regime has become so voluminous, complicated, and convoluted that it has given rise to a system of extreme complexity and significant unpredictability. Unpredictability puts businesses in doubt and at risk. Doubt and risk  increase the costs of compliance and the prices of supplies and services. They are drags on process. At the same time, they make real and full compliance nearly impossible. Statutes, executive orders, regulations, policies, deviations, exceptions, "informative" websites. It's all too much.

Unfortunately, our governing institutions are so dysfunctional now that we cannot fix the system. We have seen that "reform" does not work. That's because Congress, the Executive Branch, and the Judicial Branch simply do not function as they should and as they must in order to sustain and protect us. 

For all the NCMA ballyhoo and recent tendency to celebrate "leaders," a cult of personalities, much of what is called "innovation" is really just connivance to exploit rule conflicts and gaps and develop work-arounds, which sometimes undermines the integrity of the system and process, giving rise to cynicism and discouragement. 

This is a sad state of affairs. I have devoted an almost 50-year career to trying to understand the system and the process. But you can see, below, what I have adopted as a signature motto.

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2 hours ago, Vern Edwards said:

My point in all this has been to show that the acquisition regulatory regime has become so voluminous, complicated, and convoluted that it has given rise to a system of extreme complexity and significant unpredictability. Unpredictability puts businesses in doubt and at risk. Doubt and risk  increase the costs of compliance and the prices of supplies and services. They are drags on process. At the same time, they make real and full compliance nearly impossible. Statutes, executive orders, regulations, policies, deviations, exceptions, "informative" websites. It's all too much.

Unfortunately, our governing institutions are so dysfunctional now that we cannot fix the system. We have seen that "reform" does not work. That's because Congress, the Executive Branch, and the Judicial Branch simply do not function as they should and as they must in order to sustain and protect us. 

@Vern Edwards Your response got me thinking why the system evolved the way it has.  Three thoughts immediately came to mind.

One is government wants the system to serve too many constituent groups.  The subject of this discussion for example results from attempts to satisfy organized labor.   Then we have the complexity from efforts to support small and all the related subsets of small businesses and other organizations.  Recently the Administration decided that contractor employees must be vaccinated.  Every year the appropriation bills require agencies to do things and spend money for things relatively meaningless for the specific agencies.  It’s almost like using acquisition to support mission accomplishment is a side purpose.

We take good ideas and “Federalize” them where they often are not worth doing.  Past performance evaluations,  use of IDIQ contracts, strategic sourcing,  and simplified acquisitions are examples.

Finally there are so many “controls” in place because government contracting personnel just can’t or don’t know how to apply rules.  

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@formerfed

21 minutes ago, formerfed said:

One is government wants the system to serve too many constituent groups.  The subject of this discussion for example results from attempts to satisfy organized labor.   Then we have the complexity from efforts to support small and all the related subsets of small businesses and other organizations.  Recently the Administration decided that contractor employees must be vaccinated.  Every year the appropriation bills require agencies to do things and spend money for things relatively meaningless for the specific agencies.  It’s almost like using acquisition to support mission accomplishment is a side purpose.

Bingo!

Add to that the nature of our government, with its separation of powers (unlike in parliamentary systems).

When Congress doesn't like the way the Executive Branch performs, it makes laws, because that's all it can do. Then the Executive writes orders and regulations. So many rules. The courts and other legal tribunals are involved with everything, because lawyers and litigants make it so. More rules ("case law").

It's not enough that practitioners think it can be useful to consider past performance. We have to make it a law. And once it's in the books... And please don't get me started on performance-based acquisition.

Too many top and mid-level management jobs are done by political appointee amateurs. By the time they set up office and bone up on the work it's time to leave. They, of course, have to launch their "initiatives."

I could go on, but to no purpose. Every informed and thinking American knows what's up.

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6 minutes ago, Vern Edwards said:

Too many top and mid-level management jobs are done by political appointee amateurs. By the time they set up office and bone up on the work it's time to leave. They, of course, have to launch their "initiatives."

Hey all, just wondering who the current OFPP Administrator is right now? How's that going for us?

 

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